[ v26 p222 ]
26:0222(29)CA
The decision of the Authority follows:
26 FLRA No. 29
DEPARTMENT OF THE ARMY
FORT RILEY, KANSAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2324
Charging Party
Case No. 7-CA-60202
DECISION AND ORDER
The Administrative Law Judge issued the attached decision in the
above entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that the Respondent be ordered to cease and desist from
those practices and to take certain affirmative actions. The Respondent
filed exceptions to the Judge's decision and the General Counsel filed
an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge at the
hearing and find that no prejudicial error was committed. The rulings
are hereby affirmed. Upon consideration of the Judge's decision, the
exceptions, opposition and the entire record, we adopt the Judge's
findings, conclusions and recommended order.
ORDER
Pursuant to section 2423.29 Authority's Rules and Regulations and
section 7118 of the Statute, we order that Department of the Army, Fort
Riley, Kansas, shall:
1. Cease and desist from:
(a) Discriminating against Marshall Heath, Chief Steward of the
American Federation of Government Employees, Local 2324, by denying him
official time under Equal Employment Opportunity (EEO) regulations to
act as the personal representative of a non-bargaining unit employee in
an EEO complaint, because of his representational duties on behalf of
Local 2324.
(b) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Make Marshall Heath whole for any loss of hours incurred as a
result of the denial of official time for him to act as the personal
representative of non-bargaining unit employee Donald Shipley in an EEO
complaint, including making him whole for any wages lost because of his
use of leave without pay to represent Shipley and including restoring
any annual leave he may have used to represent Shipley.
(b) Post at its facility copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Chief-Management and Employees
Relations Division, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, Denver, Colorado, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., March 17, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Marshall Heath, Chief Steward of
American Federation of Government Employees, Local 2324, by denying him
official time under Equal Employment Opportunity (EEO) regulations to
act as the personal representative of a non-bargaining unit employee in
an EEO complaint because of his representational duties on behalf of
Local 2324.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL make Marshall Heath whole for any loss of hours incurred as a
result of the denial of official time for him to act as the personal
representative of non-bargaining unit employee Donald Shipley in an EEO
complaint, including making him whole for any wages lost because of his
use of leave without pay to represent Shipley and including restoring
any annual leave Heath used to represent Shipley.
(Agency)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, of the Federal Labor Relations Authority, Region VII, whose
address is: 535 16th Street, Suite 310, Denver, Colorado 80202, and
whose telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-60202
DEPARTMENT OF THE ARMY, FORT RILEY, KANSAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2324
Charging Party
Captain Dennis A. Sommese, Esquire
For the Respondent
Mr. Gary Miles
For the Charging Party
Matthew Jarvinen, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Seven, Federal Labor Relations Authority,
Denver, Colorado against the Department of the Army, Fort Riley, Kansas
(Respondent), based on a charge filed by the American Federation of
Government Employees, AFL-CIO, Local 2324 (Charging Party or Union).
The complaint alleged, in substance, that Respondent violated section
7116(a)(1) and (2) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by denying
employee Marshall Heath the use of official time under the Respondents'
Equal Employment Opportunity (EEO) regulations to act as the personal
representative of a non-bargaining unit employee. The complaint alleged
that Heath was denied the official time because of his activities as a
Union representative.
Respondent's answer admitted the jurisdictional allegations as to
Respondent, the Union, and the charge, but denied any violation of the
Statute. Respondent asserted that the collective bargaining agreement
required Union representatives to represent non-bargaining unit
employees in a non-duty status, and EEO regulations granted no official
time to such a representative over and above that provided by the
agreement.
A hearing was held in Manhattan, Kansas at which time the Respondent,
Charging Party, and the General Counsel were represented. The parties
were afforded full opportunity to be heard. Respondent filed a formal
motion to dismiss together with points and authorities. Ruling on the
motion was deferred. Thereafter, the parties were permitted to adduce
relevant evidence, examine and cross-examine witnesses, and file
post-hearing briefs. The Respondent and General Counsel filed helpful
briefs, and the proposed findings have been adopted where found material
and supported by the record as a whole. Based on the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. At all times material, the Union has been the exclusive
representative of an appropriate unit of Respondents' employees paid
from appropriated funds. At all material times, the Union has also
served as the exclusive representative of a number of other bargaining
units, including a bargaining unit composed of all of Respondents'
non-appropriated fund unit employees.
2. In early January 1986, a former employee of Respondent, Donald
Shipley, appeared at the Union office seeking someone to represent him
in an EEO complaint. Shipley had been terminated from his employment
with Respondent. At the time of his termination, Shipley was not a
member of any bargaining unit represented by the Union. Union president
Gary Miles informed Shipley that the Union could not represent him, but
that he would discuss the matter of his representation with Marshall
Heath, the Union's chief steward, and get back to Shipley with a
response.
3. Subsequently, Marshall Heath took it upon himself to serve as
Shipley's personal representative in connection with Shipley's EEO
complaint. Shipley specifically designated Heath as his personal
representative. Marshall Heath has been employed by Respondent as a
sheet metal mechanic in the Directorate of Engineering and Housing since
September 1973 and is a member of the appropriated fund bargaining unit.
Heath has served as the Union's chief steward for approximately three
and one-half years, and previously served as the Union's president for
four years. As chief steward, Heath is entitled to reasonable time, not
to exceed 35% of his on-duty time per pay period, for authorized Union
representational duties as specified in the collective bargaining
agreement. Heath's decision to represent Shipley was strictly a
personal decision. At no time did the Union authorize Heath to represent
Shipley. Nor did Heath utilize any of the Union's supplies or facilities
in representing Shipley.
4. During the period of January 8, 1986 to July 1, 1986 Heath spent
24 hours representing Shipley in connection with Shipley's EEO
complaint. Murt Hanks, Respondent's EEO Officer, testified that 24
hours was not an excessive or unreasonable amount of time, and I so
find.
5. Respondent required Heath to take either annual leave or leave
without pay for all times spent representing Shipley. Heath took leave
without pay, because he had a shortage of annual leave. Heath's
supervisor, Victor Jones, approved each of Heath's requests for leave
without pay without expressing any reservation as to the amount of time
Heath was absent, or concerning the effect of Heath's absences on the
workload.
6. Commencing on January 10, 1986, and continuing to date,
Respondent denied Heath's requests for the use of official time under
Respondent's EEO regulations to act as the personal representative of
Shipley, a non-bargaining unit employee, with respect to Shipley's EEO
complaint. Respondent took the position that inasmuch as Health was,
and is, the Union chief steward, a designated Union representative, he
is bound by Article 7, section 5a of the collective bargaining
agreement, and if he chooses to represent Shipley, must do so in a
non-duty status. Respondent concluded that the agreement's provisions
mandated what the Agency could tolerate for representational time before
causing an unreasonable cost or hardship.
7. If Marshall Heath had not been a designated Union representative,
Respondent would have granted him official time under EEO regulations to
serve as the personal representative of the non-bargaining unit
employee.
8. Respondent followed the recommendations of Allen D. Rue, Civilian
Personnel Officer, and William C. Long, Chief, Management and Employee
Relations Division, which were based on their interpretations of the
collective bargaining agreement and the EEO regulations. Respondent's
EEO officer, Murt Hanks, had recommended that Heath be provided official
time under the EEO regulations. He had also previously advised Heath
that he was entitled to official time. Hanks concluded that Heath was
acting in the capacity of an employee as a personal representative in
the EEO proceedings and not as a Union steward. He also concluded that
since management had agreed to grant Heath leave without pay or annual
leave, this negated the argument that Heath's absence from the job
created an undue hardship.
EEO Official Time Provisions
9. EEO regulations provide at 29 C.F.R. Section 1613.214(b) that an
EEO complainant has the right to designate a representative of his own
choosing. Section 1613.214(b) further provides:
If the complainant is an employee of the agency and he
designates another employee of the agency as his representative,
the representative shall have a reasonable amount of official
time, if he is otherwise in an active duty status, to present the
complaint.
10. EEO Management Directive (EEO MD) 403, dated September 27, 1983,
provides guidance to federal agencies with regard to the entitlement of
a complainant and his/her representative to a reasonable amount of
official time for meetings, hearings, and preparation time. Section d
provides:
d. Exception.
The only exception to the above guidance would be with respect
to a representative who acts in a representational capacity in
more than one complaint in a given time period. The Commission
considers it reasonable for agencies to expect their employees to
spend most of their time doing the work for which they are
employed. Therefore, the Commission would consider it reasonable
for an agency to restrict the overall hours of official time
afforded to a representative, for both preparation purposes and
for attendance at meetings and hearings, to a certain percentage
of that representative's duty hours in any given month, quarter,
or year. Such overall restrictions would depend on the nature of
the position occupied by the representative, the relationship of
that position to the mission of the agency, and the degree of
hardship imposed on the mission of the agency by the
representative's absence from his/her normal duties. The amount
of official time to be afforded to an employee for
representational activities in connection with more than one
complaint will vary with the circumstances of the complaints
involved. Overall restrictions of this type apply only where more
than one complaint is involved and only to official time other
than annual leave. Agency decisions to grant or withhold approval
of annual leave requests remain subject to normal agency
practices.
11. Fort Riley Regulations 690-12 of March 24, 1982 prescribes
administrative policies and procedures for recording and reporting the
use of official time for representational functions. It provides, in
part, as follows:
4. DEFINITIONS
a. Representational functions means those authorized
activities undertaken by employees on behalf of other employees
pursuant to such employee's right to representation under statute,
regulation, executive order, or the terms of a collective
bargaining agreement. It includes activities undertaken by
specific individual designation (such as the designation of a
representative in a grievance action or an EEO complaint) as well
as those activities authorized by a general, collective
designation (such as designation of a labor organization
recognized as exclusive representative under Chapter 71 of Title
5, USC).
(1) Representational functions include activities undertaken by
specific individual designation. Individuals performing this type
of activity are normally referred to as personal representatives
(such as the designation of a representative in a discrimination
complaint, appeal of an adverse action or a classification
complaint appeal).
(2) Additionally, representation functions include those
activities authorized by a general collective designation (as
opposed to a specific individual). The primary example is the
designation of a labor organization recognized as exclusive
representative under Chapter 71 of Title 5, USC. The type of
representational function may be commonly performed by the
designated steward who represents specific areas or activities of
the installation or other as provided in the applicable negotiated
agreement (see 8b).
Collective Bargaining Agreement Provisions
12. The collective bargaining agreement between Respondent and the
Union provides in pertinent part as follows:
Article 7. OFFICIAL TIME/UNION REPRESENTATION
Section 1. Purpose. To provide direction and guidance to
managers, supervisors and employees concerning granting of
official time to bargaining unit members performing Union
representational duties pertaining to the bargaining units covered
by this Agreement. The parties agree that no overtime pay or
compensatory time off will be authorized for the performance of
representational duties. No entitlement to travel pay or per diem
will be incurred as the result of the performance of Union
representational duties.
Section 2. Definitions. For purposes described herein, the
following definitions apply:
a. Union representatives are Department of Army Civilian
employees who are duly elected or appointed officers or stewards
of the Union.
. . .
Section 3. a. The Employer agrees to allow bargaining unit
members, who are properly appointed by the Union as official Union
Representatives, to perform those duties authorized under this
article without loss of pay or charge to leave subject to the
limits on the use of official duty time provided in this section.
b. Time limits for representational duties are:
(1) President: Reasonable time not to exceed 50% of his/her
on-duty time per pay period;
(2) Chief steward: Reasonable time not to exceed 35% of
his/her on-duty time per pay period.
(3) Four other designated union representatives: Reasonable
time each not-to-exceed 30% of their on-duty time per pay period.
(4) Twenty-five stewards: Reasonable time not to exceed 15% of
their on-duty time per pay period.
. . .
Section 5. a. The parties agree that no official time will be
allowed Union representatives (as defined in Section 2a above) for
representing employees or other individuals who are not in the
bargaining units represented in this Agreement. Union
officials/representatives performing representational tasks on
behalf of non-bargaining unit individuals will do so in a non-duty
status.
b. The parties agree that official time spent in representing
bargaining unit members in procedures outside the negotiated
grievance procedures provided in Article 11 will be also included
in the representational time provided for in this Article. Time
used by Union officials/representatives in excess of the amounts
specified in Section 3b of this Article are considered
unreasonable costs to the Employer. Time used by Union
officials/representatives in excess of that provided in Section 3b
shall be in a non-duty status unless additional time is granted in
accordance with the note following 3b.
Section 6. Labor-Management business authorized by this
agreement is as follows:
a. Discussion of complaints or potential grievances with
employee(s) concerned.
b. Representing employees in identifiable complaints,
grievances, and adverse actions.
c. The representation of an employee in a properly established
hearing or investigation.
d. Attendance as the Union representative at formal
discussions . . . .
e. Attend meetings with management.
f. Performance of representational functions where time is
authorized pursuant to, and consistent with, applicable statutes,
regulations, executive orders, and provisions of this agreement,
e.g., (but not limited to) discrimination complaints and appeals
from adverse actions.
Bargaining History
13. Article 7 was negotiated, pursuant to section 7131(d) of the
Statute. Article 7, Section 5a, providing that no official time will be
allowed Union representatives for representing non-bargaining unit
individuals, was a management proposal. It was agreed to by the Union
in exchange for Respondent's agreement to permit Union representatives
to use a portion of their on-duty time as official time to represent
bargaining unit employees. Management made the proposal in light of a
controversy which had existed whereby Union representatives in the
appropriated fund unit sought to cross-over and represent employees in
the non-appropriated fund unit. Management's chief negotiator, William
C. Long, explained that since management was giving Union stewards a
considerable amount of duty time to represent bargaining unit members,
it should be non-duty time for representation of non-bargaining unit
members. With the appropriated fund unit and non-appropriated fund unit
representation controversy in mind, the Union agreed to the proposal
with little discussion. The chief negotiator for the Union remarked,
"We don't have time enough to represent bargaining unit employees. We
haven't got time for non-bargaining unit employees." There was no
discussion concerning the ability of a Union steward to step outside his
Union role and act in an individual capacity as a personal
representative of a non-bargaining unit employee. There was also no
specific discussion of the EEO regulations.
Discussion, Conclusions and Recommendations
The General Counsel contends that Respondent's denial of official
time for Marshall Heath to act as the personal representative of Donald
Shipley in connection with Shipley's EEO complaint constituted illegal
discrimination against Heath because of his protected status as the
Union's chief steward in violation of section 7116(a)(1) and (2) of the
Statute. /1/ The General Counsel asserts that the negotiated agreement
has no applicability to Heath's representation as he was not acting as a
Union representative, but was acting in his individual capacity as a
Fort Riley employee. Alternatively, the General Counsel argues that no
waiver of Union officials' rights to receive official time to act as EEO
representatives of non-bargaining unit complainants has been
established.
Respondent contends that the matter is beyond the jurisdiction of the
Authority and can only be resolved through the parties' grievance and
arbitration procedure. Respondent also claims that the EEO regulations
create rights only in the EEO complainant. Therefore, Respondent
asserts, neither the Union nor the General Counsel has standing to
assert rights under the EEO regulations in this forum, and the Authority
has no jurisdiction to resolve such matters. Respondent argues in the
alternative that the actions of the agency were authorized by the
agreement and the EEO regulations, and the Union explicitly or
implicitly waived the rights of its shop stewards to receive official
time when acting as EEO representatives for non-bargaining unit
employees. Respondent contends that the negotiated agreement
encompasses the total representational time entitlements of a person
designated as a Union steward.
Jurisdiction -- Standing
Section 7102 of the Statute sets forth certain employee rights
including the right to form, join, or assist any labor organization
freely and without fear of penalty or reprisal and states that each
employee shall be protected in the exercise of such right. Such right
includes the right to act for a labor organization in the capacity of a
representative. Section 7116(a)(1) of the Statute provides that it
shall be an unfair labor practice for an agency to interfere with,
restrain, or coerce any employee in the exercise of any right provided
by the Statute. Section 7116(a)(2) makes it an unfair labor practice
for an agency "to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment." Under sections 7103(a)(1)
and 7118(a)(1) of the Statute and section 2423.3 of the Authority's
Rules and Regulations "any person," as defined to include a labor
organization, may file a charge alleging a violation of the Statute.
See National Army and Air Technicians Association, Local 371, 7 FLRA 154
(1981); National Treasury Employees Union, 6 FLRA 218 (1981). Under
section 7118(a)(1) of the Statute the General Counsel has authority to
investigate the charge and issue a complaint. Section 7105(a)(2)(G)
empowers the Authority to conduct hearings and resolve complaints of
unfair labor practices.
As noted, section 7116(a)(2) prohibits "discrimination in connection
with . . . conditions of employment" on the basis of Union membership or
activities. The Statute defines "conditions of employment" in section
7103(a)(14) as "personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, affecting working
conditions" with certain exceptions. /2/ Thus, the Authority has
jurisdiction to examine the EEO regulations in issue to the extent
necessary to determine whether they come within this definition and to
resolve the discrimination complaint of whether Marshall Heath was
denied a condition of employment because of his protected status as a
Union representative.
The issue raised by the complaint involves the alleged denial of
basic employee rights under section 7102 of the Statute and is properly
before the Authority in an unfair labor practice proceeding. See, e.g.,
Federal Aviation Administration, 15 FLRA 668 (1984). Section 7116(d) of
the Statute specifically provides that "(i)ssues which can be raised
under a grievance procedure may, in the discretion of the aggrieved
party, be raised under the grievance procedure or as an unfair labor
practice under this section, but not under both procedures." In view of
this provision of the Statute the Authority has declined to defer to the
parties' negotiated grievance and arbitration procedure. Federal
Aviation Administration, 15 FLRA 668 (1984); Department of the
Treasury, United States Customs Service, 19 FLRA No. 58, 19 FLRA 421
(1985). However, no unfair labor practice may ultimately be found if
the alleged violation is determined to be based on an arguable
interpretation of the parties' agreement. See, e.g., Department of
Health and Human Services, Social Security Administration, 23 FLRA No.
62, 23 FLRA 422 (1986). On the other hand, if Respondent's
interpretation of the agreement is untenable, an unfair labor practice
may be found. See, e.g., Department of the Air Force, Eielson Air Force
Base, Alaska, 23 FLRA No. 83, 23 FLRA 605, 611 (1986). Accordingly,
Respondent's defense that the Charging Party and the General Counsel
lack standing and the Authority lacks jurisdiction is without merit.
The EEO Regulation
EEO regulations, at 29 CFR Section 1613.214(b), provides that where
an EEO complainant's designated representative is an employee of the
agency, that representative is entitled to a reasonable amount of
official time to serve in that capacity if he is otherwise in an active
duty status. Respondent does not contend that this benefit, official
time during regular duty hours for an employee to represent an EEO
complainant, is not a condition of employment within the meaning of
section 7103(a)(14) of the Statute. Therefore, I conclude that it is.
Cf. Portsmouth Naval Shipyard, 23 FLRA No. 68, 23 FLRA 475, 480 (1986).
See also AFGE, 2 FLRA 604, 616-617 (1980).
The EEO complainant in this case, Donald Shipley, designated Marshall
Heath, a Fort Riley employee, to serve as his EEO representative. Since
it is undisputed that Heath's representation of Shipley was during
regular duty hours, Heath would appear to be entitled to a reasonable
amount of official time to represent Shipley as provided by the EEO
regulation. The only exception to this entitlement, according to EEO
Management Directive 403, is that restrictions may be imposed to a
certain percentage of the representative's duty hours where the
representative acts in more than one complaint in a given month,
quarter, or year and where the representative's absence from normal
duties would pose a hardship on the mission of the agency. The record
does not reflect that this exception applies. There was no showing that
Heath acted in more than one EEO complaint during a given period, or
that his absence posed a hardship. In this connection, Heath was
advised that he would be permitted to use annual leave or LWOP to
represent Shipley. Heath's requests for LWOP to represent Shipley were
approved by his supervisor without the expression of any reservation
concerning the workload or the amount of time Heath was absent from the
worksite.
The record establishes that but for Heath's designation as a Union
steward, Heath's requests for official time under EEO regulations to
serve as the personal representative of Shipley in connection with
Shipley's EEO complaint would have been granted. This designation, in
Respondent's view, brought the official time provisions of the agreement
into operation.
The Agreement
Respondent maintains that Article 7, Section 2, which defines "Union
representatives" as "employees who are duly elected or appointed
officers or stewards of the Union" creates a status different from other
employees in the agency. Respondent claims that this definition,
together with the time entitlements set forth in Section 3 of the
agreement, limit Union representatives to the time and representational
duties set forth in the agreement. Respondent contends that Section 5a
and 6f of the agreement constitute an explicit waiver of the rights of
stewards to receive additional time, and there exists an implicit waiver
as well.
I agree with the General Counsel that the negotiated agreement is not
controlling concerning Heath's personal representation of Shipley, a
non-bargaining unit employee, in the EEO matter. Article 7, by its
terms, provides guidance concerning the "granting of official time to
bargaining unit members performing union representational duties
pertaining to the bargaining units covered by this agreement." Article 7
was negotiated pursuant to section 7131(d) /3/ which specifically
authorizes the negotiation of official time for an employee
"representing an exclusive representative." See AFGE, Local 2094, 19
FLRA No. 120, 19 FLRA 1027, 1029-1030 (1985).
The collective bargaining agreement provides limited official time
for Union representation of bargaining unit employees in various
labor-management related representational matters including the
negotiated grievance procedure, discrimination (EEO)) complaints, and
appeals from adverse actions. Article 7, Sections 3, 5, 6. It provides
no official time for Union representatives to represent individuals who
are not in the bargaining units. Article 7, Section 5a. I conclude
that this provision also refers to "union representational duties" or an
individual "representing an exclusive representative" in view of the
stated purpose of the Article and section 7131(d) under which it was
negotiated. This section, requiring that the Union's representation of
non-bargaining unit employees be performed in a non-duty status, was
included in the agreement in exchange for Respondent's agreement to
permit Union representatives to use a portion of their on-duty time as
official time. This provision was proposed and agreed to in light of
the experience of Union representatives of one bargaining unit providing
Union representation to employees of another bargaining unit while on
official time. It was designed to prevent this practice. With this
understanding, it is not surprising that the Union agreed to section 5a
with little discussion, stating only that it had no interest in
representing non-bargaining unit employees. As noted, under section
7131(d) of the Statute a union representative is only entitled to
official time to represent fellow bargaining unit employees in an amount
the parties agree to be reasonable, necessary and in the public
interest. National Association of Government Employees, Local R14-77,
23 FLRA No. 76, 23 FLRA 547 (1986). There was no discussion concerning
whether a Union representative could step outside of his Union
representational role and act as a personal representative of a
non-bargaining unit employee.
It is concluded that Respondent's interpretation of the parties'
agreement to deny Heath's requests for official time is untenable. The
"waiver" principles generally apply only to the waiver of a statutory
right. However, to the extent the parties deem them applicable here as
involving the waiver of a condition of employment, neither the language
of Article 7 of the negotiated agreement, the bargaining history behind
Article 7, or the practice observed by the parties in implementing
Article 7 (no similar situation encountered), establish a waiver of the
right of employees who may be designated as Union representatives to
receive official time pursuant to EEO regulations when acting
individually as personally designated representatives of non-bargaining
unit employees in EEO matters.
Respondent asserts that by filing the charge in this case, the Union
seeks to gain official time over and above that which was negotiated in
Article 7 of the agreement. As noted, Heath's entitlement to official
time to represent Shipley is not based on the agreement, but
independently on EEO regulations. This decision merely ensures that,
under the circumstances of this case, Union officials will not be denied
official time to which they are otherwise entitled as employees under
EEO regulations solely because of their status as Union officials.
It is concluded that Respondent, by denying employee Marshall Heath
the use of official time under EEO regulations to act as the personal
representative of a non-bargaining unit employee because of his status
as a Union representative violated section 7116(a)(1) and (2) of the
Statute, as alleged. Respondent's action discouraged membership and
willingness to act in the capacity of a representative by discrimination
in connection with a condition of employment. Respondent's action also
interfered with, restrained, or coerced Heath in the exercise of rights
guaranteed in section 7102 of the Statute. Cf. Portsmouth Naval
Shipyard and Department of the Navy, 23 FLRA No. 68, 23 FLRA 475 (1986).
Based on the foregoing findings and conclusions, it is recommended
that the Authority deny Respondent's motion to dismiss and issue the
following order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of the Army, Fort Riley,
Kansas, shall:
1. Cease and desist from:
(a) Discriminating against Marshall Heath, Chief Steward of the
American Federation of Government Employees, Local 2324, by
denying him official time under Equal Employment Opportunity (EEO)
regulations to act as the personal representative of a
non-bargaining unit employee in an EEO complaint, because of his
representational duties on behalf of Local 2324.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Make Marshall Heath whole for any loss of hours incurred as
a result of the denial of official time for Heath to act as the
personal representative of non-bargaining unit employee Donald
Shipley in an EEO complaint, including making Heath whole for any
wages lost because of his use of leave without pay to represent
Shipley and including restoring any annual leave Heath used to
represent Shipley.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by the Chief, Management and Employee
Relations Division, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that such notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations notify the Regional Director, Region 7, Federal Labor
Relations Authority, Denver, Colorado, in writing, within 30 days
from the date of this order, as to what steps have been taken to
comply herewith.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: November 28, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) "Section 7116. Unfair labor practices
"(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
"(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
"(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment(.)"
(2) Section 7103 of the Statute defines conditions of employment as
follows:
Section 7103. Definitions; application
(a) For the purpose of this chapter --
. . . . . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulations,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters --
(A) relating to political activities prohibited under
subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by
Federal statute(.)
(3) Section 7131(d) provides, in part, that:
(d) Except as provided in the preceding subsections of this
section --
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Marshall Heath, Chief Steward of the
American Federation of Government Employees, Local 2324, by denying him
official time under Equal Employment Opportunity (EEO) regulations to
act as the personal representative of a non-bargaining unit employee in
an EEO complaint, because of his representational duties on behalf of
Local 2324.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL make Marshall Heath whole for any loss of hours incurred as a
result of the denial of official time for Heath to act as the personal
representative of non-bargaining unit employee Donald Shipley in an EEO
complaint, including making Heath whole for any wages lost because of
his use of leave without pay to represent Shipley and including
restoring any annual leave Heath used to represent Shipley.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 7,
whose address is: 535 -- 16th Street, Suite 310, Denver, Colorado
80202, and whose telephone number is: (303) 837-5224.